(a) Local government application of standards. This section provides the standards local governments shall follow when issuing, denying, or conditioning dune protection permits and beachfront construction certificates. This section applies to all construction within the geographic scope of this subchapter and to either permits or certificates or both. The requirements of this section are in addition to the requirements in §15.4 of this title (relating to Dune Protection Standards), and §15.5 of this title (relating to Beachfront Construction Standards).     
      (b) Location of construction. Local governments shall require permittees to locate all construction as far landward as is practicable and shall not allow any construction which may aggravate erosion.     
      (c) Prohibition of erosion response structures. Local governments shall not issue a permit or certificate allowing construction of an erosion response structure. Notwithstanding the general prohibition on constructing erosion response structures, a local government may authorize the construction of a structural shore protection project that conforms with the policies of the General Land Office promulgated in 31 TAC §26.26(b) of this title (relating to Policies for Construction in the Beach/Dune System). However, a local government may issue a permit or certificate authorizing construction of a retaining wall, as defined in §15.2 of this title (relating to Definitions), under the following conditions. These conditions only apply to the construction of a retaining wall; all other erosion response structures are prohibited.      
        (1) A local government shall not issue a permit authorizing the construction of a retaining wall within the area 200 feet landward of the line of vegetation.       
        (2) A local government may issue a permit authorizing construction of a retaining wall in the area more than 200 feet landward of the line of vegetation.       
      (d) Existing erosion response structures. In no event shall local governments issue permits or certificates authorizing maintenance or repair of an existing erosion response structure seaward of the line of vegetation or the enlargement or improvement of the structure within 200 feet landward of the line of vegetation. Notwithstanding the general prohibition on maintaining or repairing erosion response structures, a local government may authorize the maintenance or repair of a structural shore protection project that conforms with the policies of the General Land Office promulgated in 31 TAC §26.26(b). Also within 200 feet landward of the line of vegetation, local governments shall not issue a permit or certificate allowing any person to maintain or repair an existing erosion response structure if the structure is more than 50% damaged, except under the following circumstances.      
        (1) When failure to repair the structure will cause unreasonable hazard to a public building, public road, public water supply, public sewer system, or other public facility immediately landward of the structure.       
        (2) When failure to repair the structure will cause unreasonable flood hazard to habitable structures because adjacent erosion response structures will channel floodwaters to the habitable structure.       
      (e) Construction in flood hazard areas.      
        (1) A local government shall not issue a permit or certificate that does not comply with FEMA's regulations governing construction in flood hazard areas. FEMA prohibits man-made alteration of sand dunes and mangrove stands within Zones V1-30, V, and VE on the community's flood insurance rate maps which would increase the potential for flood damage.       
        (2) A local government shall inform the General Land Office and the FEMA regional representative in Texas before it issues any variance from FEMA regulations or allows any activity done in variance of FEMA's regulations found in Volume 44 of the Code of Federal Regulations, Parts 59-77. Variances may adversely affect a local government's participation in the National Flood Insurance Program.       
        (3) A local government shall not issue a permit or certificate that does not comply with FEMA minimum requirements or with the FEMA-approved local ordinance or county commissioners court order.       
      (f) Construction in eroding areas. Local governments with jurisdiction over eroding areas shall follow the standards provided in §15.4 of this title and §15.5 of this title. If there is any conflict between this subsection, §15.4 of this title, and §15.5 of this title, this subsection applies. The General Land Office shall supply information for or assist a local government in determining eroding areas and the landward boundary of eroding areas. In addition, because of the higher risk of damage from flooding or erosion in such areas, local governments shall:      
        (1) require that structures built in eroding areas be elevated on pilings in accordance with FEMA minimum standards or above the natural elevation (whichever is greater);       
        (2) require that structures located on property adjacent to the public beach be designed for feasible relocation;       
        (3) allow a permittee to alter or pave only the ground within the footprint of the habitable structure, not including amenities (however, permeable materials such as brick pavers, gravel or crushed limestone may be used to construct driveways) only if the alteration or paving will be entirely undertaken, constructed, and located landward of 200 feet from the line of vegetation or landward of an eroding area boundary established in the local beach/dune plan, whichever distance is greater; and       
        (4) Unless otherwise restricted by the local plan, and if consistent with the requirements of National Flood Insurance Program, local governments may permit the construction of a storage area or areas with breakaway or louvered walls or for enclosures required by local building or safety codes.       
        (5) Notwithstanding the provisions of paragraph (3) of this subsection, a local government may allow a permittee to place unreinforced fibercrete in 4 foot by 4 foot sections, 4 inches thick separated by expansion joints beneath the footprint of the habitable structure, as defined in Section 15.2 of this title, only if the fibercrete is not structurally attached to the pilings. The placement of unreinforced fibercrete will be entirely undertaken, constructed, and located at least 25 feet from the landward toe of the foredunes. If no dunes exist, placement of unreinforced fibercrete will only be undertaken, constructed, and located at least 100 feet landward of the line of vegetation, or landward of an eroding area boundary established in the local dune protection and beach access plan, whichever distance is greater. Gravel or crushed limestone may be used to construct driveways and parking areas in the area 50 feet landward of the line of vegetation to the Dune Protection Line.       
      (g) Construction of certain parking areas or walkways. Notwithstanding the standards provided in §15.4(c)(8) of this title, §15.5(b)(3) of this title, and subsection (f) of this section, if parking areas or walkways for commercial facilities or public beach access facilities are required to be accessible for persons with disabilities and the use of permeable materials is not practicable, a local government may allow a concrete slab or other impervious surface whose area does not exceed 5.0% of the square footage of the property, upon demonstration of necessity by the applicant. If there is any conflict between this subsection, §15.4(c)(8) of this title, §15.5(b)(3) of this title, and subsection (f) of this section, this subsection applies.     
      (h) Construction affecting natural drainage patterns. Local governments shall not issue a certificate or permit authorizing construction unless the construction activities will minimize impacts on natural hydrology. Such projects shall not cause erosion of adjacent properties, critical dune areas, or the public beach.     
      (i) Construction of dune walkovers or similar structures. Proliferation of dune walkovers shall be minimized as provided for in 15.4(f)(2)(B) of this title. Local governments shall require permittees to construct dune walkovers in the following manner:      
        (1) Dune walkovers shall be constructed to allow for the growth of dune vegetation and the migration of dunes under the walkovers.                  (A) The width of a dune walkover or similar structure is limited to 4 feet wide, where practicable. An increased width may be permitted for public access walkovers, shared walkovers for three or more residences, or for wheelchair or golf-cart use with approval of the local government. The need for a dune walkover or similar structure wider than 4 feet must be demonstrated during the permit application process.                   (B) The lowest level of the walkover must be of sufficient elevation to accommodate expected increases in dune height. At a minimum, the lowest level of the dune walkover with a width of 4 feet or less must be constructed at a height of at least 3 feet above the highest point of the tallest dune crest beneath and immediately adjacent to the dune walkover. A dune walkover with a width of greater than 4 feet must be constructed at an adequate height that will allow for the growth of dune vegetation and migration of dunes under the walkover. Exceptions to the height requirement may be made for walkovers to descend to the beach over the foredune ridge.                   (C) Slats forming the deck of the dune walkover shall be spaced at least 1/2 inches apart so that sunlight and rainfall can penetrate to vegetation below and so that sand will not accumulate on the deck.         
        (2) Use of concrete to stabilize dune walkover pilings is prohibited.       
        (3) For all new construction of public dune walkovers in areas where vehicles are prohibited from driving on and along the public beach, local governments are required to construct walkovers accessible for persons with disabilities, where practicable.       
        (4) The requirements in paragraphs (1) - (3) of this subsection apply to all new construction of dune walkovers and similar structures and any major repairs to existing dune walkovers and similar structures.       
      (j) Emergency response to oil or hazardous substance spills. Any person responding to spills shall comply with the following regulations when cleaning up or disposing of oil or hazardous substances in the beach/dune system.      
        (1) The state on-scene coordinator is responsible for contacting the GLO Beach/Dune Team regarding proposed cleanup and disposal methods.       
        (2) The state on-scene coordinator shall, in consultation with the state natural resource trustees and the GLO Beach/Dune Team and through the Incident Command System, determine the appropriate depth for excavation and the appropriate quantity of sand to be removed, if any, from the beach/dune system.                  (A) Spill cleanup. Cleanup methods shall avoid and otherwise minimize adverse impacts to the beach/dune system by ensuring that:                      (i) Removal of sand from the beach is limited to the absolute minimum and will not exacerbate shoreline erosion.                       (ii) Manual cleanup methods are used, if practicable.                       (iii) Grading or scraping of the beach is minimized, and grading of non-oiled or non-hazardous areas is prohibited.                     (B) Disposal of contaminated sand. Disposal methods shall avoid adverse impacts to the beach/dune system by ensuring that:                      (i) Before any scraped sand is relocated within the beach/dune system, the material shall be tested for toxicity and percent of oiling. Only material that does not pose a threat to human health and the environment may remain in the beach/dune system. New dunes (man-made mounds) may be built with non-hazardous material provided that they are built in accordance with §15.7(e) of this title (relating to Local Government Management of the Public Beach) and placed in areas preapproved by the state natural resource trustees. A dune protection permit is not required for such new dune creation. The disposal shall be in accordance with applicable, relevant, and appropriate requirements established by local state and federal laws.                       (ii) Hazardous materials shall be removed and disposed of as required by local, state, and federal laws.                       (iii) Disposal of waste must be in compliance with applicable state and federal laws and regulations of the Texas Commission on Environmental Quality and the United States Environmental Protection Agency. Disposal of oiled, non-hazardous sand shall be in accordance with applicable state and federal law, except that such sand shall not be disposed of in a location on or adjacent to dune vegetation, as defined in §15.2 of this title.           
     Source Note:        The provisions of this §15.6 adopted to be effective February 17, 1993, 18 TexReg 661; amended to be effective April 16, 1996, 21 TexReg 3004; amended to be effective October 21, 2003, 28 TexReg 9075; amended to be effective October 10, 2005, 30 TexReg 6447; amended to be effective January 25, 2007, 32 TexReg 244; amended to be effective January 31, 2010, 35 TexReg 489; amended to be effective May 8, 2023, 48 TexReg 2343